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The prosecution’s burden of proof is often stated as a burden to prove “every element of the charge.” For example, Ninth Circuit Instruction 3.2 provides as follows:

The defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt.1

However, more often than not, the determination of whether an element has been proved requires the jurors to decide whether other subordinate facts have been proved. For example, in an attempted murder case now pending before the California Supreme Court, the prosecution sought to prove the actus reus element of the crime by two discrete subordinate facts: (1) an identification of the defendant by the victim and (2) other crimes evidence allegedly showing a common modus operandi. The defense challenged each of these subordinate facts individually with: (1) evidence that the identification was unreliable due to a sugg

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